SAN JOSE – A U.S. district court judge has dismissed several cities’ claims attempting to hold Monsanto responsible for PCB contamination in the San Francisco Bay.
Judge Edward Davila of the Northern District of California’s San Jose division said the cities of San Francisco, San Jose and Berkeley failed to meet the threshold requirement for bringing a public nuisance claim against Monsanto, but he gave plaintiffs an opportunity to amend the claim.
“Their complaints and briefing are not altogether clear on precisely what property interest they claim or why they have such a property interest. In light of this ambiguity, the court cannot yet conclude that further amendment of the nuisance claims would be futile,” Davila wrote in the decision.
A second claim of equitable indemnity that would force Monsanto share the cost of damages and cleanup with the cities was dismissed as premature.
“The court's ruling is a complete rejection of these contrived legal theories that confirms there is no basis in the law for these speculative nuisance claims by the cities,” Scott S. Partridge, vice president of global strategy for Monsanto, said in a statement to the Northern California Record. “San Jose, Berkeley and Oakland have been ill-served by the overly aggressive tactics of their contingency fee counsel, and we hope this ruling will conclude this matter.”
In the lawsuit, the cities accused Monsanto of creating a public nuisance by manufacturing, distributing, marketing and promoting PCBs that have hurt the Bay. Between 1935 and 1979, “Old Monsanto” – the original Monsanto company – was the only U.S. maker of PCBs, which are man-made compounds used in electrical equipment, paint and some building materials. PCBs were banned in 1979 under the Toxic Substances Control Act. Exposure to PCB is allegedly linked to cancer and other health effects in humans.
The lawsuit claims Monsanto knew PCBs are harmful to human and environmental health, but continued manufacturing them. The cities claim that PCBs originate from multiple sources, but discharge into the bay when it rains. An updated permit sets stricter requirements on PCB levels that will require the cities to spend more money to reduce stormwater discharge. The cities argue that Monsanto created a public nuisance, which affects people’s recreation and commercial activities.
To make the public nuisance claim, the cities had to show that their property was affected by the nuisance. The cities claimed a property interest in stormwater that was polluted by PCBs because the cities collect stormwater and manage its discharge into the bay. The three cities are responsible for collecting stormwater in separate municipal sewer systems that discharge into the bay. They’re subject to permit requirements under the Clean Water Act, including limits on PCB discharges.
But the judge rejected this argument, saying “The cities do not take ownership of stormwater merely because it flows through municipal pipes on its way to the bay.”
Under the equitable indemnity claim, the cities argue that Monsanto shares responsibility because they have had to pay to reduce PCB levels.
“However, as defendants point out, the cities have had to pay because of a regulatory requirement, not an adverse judgment,” the judge wrote. “And although it may be true that the state of California could bring a public nuisance action against the cities, an equitable indemnity cause of action is premature unless and until the state does so and obtains a judgment or settlement.”